South Australia: South Australian Employment Tribunal Act 2014 (SA)

South Australia South Australian Employment Tribunal Act 2014 An Act to establish a tribunal with jurisdiction to review certain decisions relating to rights or circumstances arising out of or in the course of employment; to confer powers on the tribunal; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Relevant Acts prevail Part 2—South Australian Employment Tribunal Division 1—Establishment of Tribunal 5 Establishment of Tribunal 6 Jurisdiction of Tribunal 6A Conferral of jurisdiction—criminal matters 6AB Diversity proceedings 6B Conferral of jurisdiction—related matters 7 Tribunal to operate throughout State 7A Seals Division 2—Main objectives of Tribunal 8 Main objectives of Tribunal Division 3—Members of Tribunal Subdivision 1—The members 9 The members Subdivision 2—The President 10 Appointment of President 11 President's functions generally 12 Acting President Subdivision 3—The Deputy Presidents 12A Number of Deputy Presidents 13 Appointment of Deputy Presidents 14 Deputy President's functions generally Subdivision 4—Magistrates 15 Magistrates Subdivision 5—Commissioners 16 Appointment of Commissioners 17 Commissioner ceasing to hold office and suspension 18 Supplementary Commissioners Division 3A—Supplementary panel members 18A Supplementary panel members Division 4—Constitution of Tribunal and its decision‑making processes 19 Constitution of Tribunal 20 Who presides at proceedings of Tribunal 21 Decision if 2 or more members constitute Tribunal 22 Determination of questions of law Division 5—Related matters 24 Validity of acts of Tribunal 25 Disclosure of interest by members of Tribunal 26 Delegation Division 6—Additional provisions relating to jurisdiction 26A Declaratory judgments 26B Other provisions relating to civil jurisdiction of Court 26C Binding nature of decisions Division 7—Additional provisions relating to jurisdiction under Return to Work Act 2014 26D Civil jurisdiction under Return to Work Act 2014 26E Rights of action and recovery against third parties 26F Review jurisdiction under Return to Work Act 2014 26G Injuries that develop gradually 26H Criminal jurisdiction 26I Appeals Division 8—Additional provisions relating to jurisdiction under Workers Compensation Act 1971 26IA Additional provisions relating to jurisdiction under Workers Compensation Act 1971 Part 3—Exercise of jurisdiction Division 1—Review jurisdiction 26J Application of Division 27 General nature of proceedings 28 Decision‑maker must assist Tribunal 29 Effect of review proceedings on decision being reviewed 30 Decision on review 31 Tribunal may invite decision‑maker to reconsider decision Division 2—Application of Division 31A Application of Division Part 4—Principles, powers and procedures Division 1—Principles governing hearings 32 Principles governing hearings Division 2—Evidentiary powers 33 Power to require person to give evidence or to produce evidentiary material 34 Entry and inspection 35 Expert reports Division 3—Procedures 36 Practice and procedure generally 37 Directions for conduct of proceedings 38 Consolidating and splitting proceedings 39 More appropriate forum 40 Dismissing proceedings on withdrawal or for want of prosecution 41 Frivolous, vexatious or improper proceedings 42 Proceedings being conducted to cause disadvantage Division 4—Conferences, mediation and settlement Subdivision 1—Conferences 43 Compulsory conciliation conferences 44 Referral of matters for hearing and determination 45 Pre‑hearing conferences Subdivision 2—Mediation 46 Mediation Subdivision 3—Settling proceedings 47 Settling proceedings Division 5—Parties 48 Parties 49 Joinder of parties etc 50 Intervening Division 6—Representation 51 Representation Division 7—Costs 52 Costs 53 Costs—related matters Division 8—Other procedural and related provisions 54 Sittings 55 Hearings in public 56 Preserving subject matter of proceedings 57 Security as to costs etc 58 Interlocutory orders 59 Conditional, alternative and ancillary orders and directions 60 Special referees 61 Relief from time limits 62 Electronic hearings and proceedings without hearings 63 Completion of part‑heard matters 64 Other claims of privilege 65 Power to enlarge scope Part 5—Review and appeals Division 1—Review and appeals 66 Internal review 67 Appeals 68 Final appeal to Court of Appeal Division 2—Related matters 69 Effect of appeal on decision 70 Reservation of questions of law Part 6—Staff Division 1—Registrars 71 Registrars 72 Functions of registrars 73 Delegation Division 2—Other staff of Tribunal 74 Other staff of Tribunal Division 3—Use of services or staff 75 Use of services or staff Part 7—Miscellaneous 76 Immunities 77 Protection from liability for torts 78 Protection for compliance with Act 79 Alternative orders and relief 80 Power to cure irregularities 81 Correcting mistakes 82 Tribunal may review its decision if person was absent 83 Tribunal may authorise person to take evidence 83A Transfer of proceedings 84 Miscellaneous provisions relating to legal process and service 85 Proof of decisions and orders of Tribunal 86 Enforcement of decisions and orders of Tribunal 87 Accessibility of evidence 88 Costs of proceedings 88A Production of persons held in custody 89 Annual report 90 Additional reports 91 Disrupting proceedings of Tribunal 91A Punishment of contempts 91B Offences 92 Rules 93 Regulations Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the South Australian Employment Tribunal Act 2014. 3—Interpretation (1) In this Act, unless the contrary intention appears— appear, at a hearing, means to appear in person or participate in a way allowed under this Act or a relevant Act; applicant means the person who— (a) brings a matter before the Tribunal; or (b) requests, requires, or otherwise seeks that a matter be referred to, or otherwise brought before, the Tribunal, except to the extent that the regulations or the rules otherwise provide; Commissioner means a person holding office as a Commissioner of the Tribunal; decision, of a person or body (other than the Tribunal) under an Act includes a direction, determination or order of that person or body; decision, of the Tribunal, includes a direction, determination or order of the Tribunal but, in prescribed circumstances, does not include an interlocutory direction, determination or order; decision‑maker—see section 27(2); Department means the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of this Act; Deputy President means a Deputy President of the Tribunal; District Court means the District Court of South Australia; evidentiary material includes any document, object or substance of evidentiary value in proceedings before the Tribunal and includes any other document, object or substance that should, in the opinion of the Tribunal, be produced for the purpose of enabling the Tribunal to determine whether or not it has evidentiary value; legally qualified member means— (a) a Presidential member; or (b) a magistrate who is a member of the Tribunal; or (c) another member of the Tribunal who is a legal practitioner of at least 5 years standing; Magistrates Court means the Magistrates Court of South Australia; monetary order means an order of the Tribunal requiring the payment of money and includes— (a) an order made for the payment of a fine or other pecuniary penalty; and (b) an order as to the payment of any costs; and (c) an order for the payment of compensation for breach of an Act; President means the President of the Tribunal; Presidential member means the President or a Deputy President of the Tribunal; registrar means the Registrar or a Deputy Registrar of the Tribunal; relevant Act means an Act (including this Act) which confers jurisdiction on the Tribunal; rules means the rules of the Tribunal in force under this Act; Tribunal means the South Australian Employment Tribunal established by this Act (including, if the context so permits, the Tribunal in Court Session—see section 5). (2) If under a relevant Act a person's failure or omission to do something is reviewable under this Act as a decision— (a) this Act applies as if that person had made that decision; and (b) any provision of the relevant Act as to when the decision is taken to have been made has effect. (3) The members of the staff of the Tribunal are— (a) the registrars; and (b) the other members of staff appointed or made available for the purposes of the Tribunal under this Act. (4) The officers of the Tribunal are— (a) the registrars; and (b) members of the staff of the Tribunal who are designated as officers of the Tribunal by the Registrar of the Tribunal; and (c) other persons who are designated as officers of the Tribunal under this Act. 4—Relevant Acts prevail (1) Subject to section 6AB, if there is an inconsistency between this Act and a relevant Act, the relevant Act prevails to the extent of the inconsistency. (2) Subsection (1) does not apply in relation to a rule made under section 92(1)(ka). Part 2—South Australian Employment Tribunal Division 1—Establishment of Tribunal 5—Establishment of Tribunal (1) The South Australian Employment Tribunal is established. (2) The Tribunal will have a part that is the Tribunal in Court Session and, as so established by force of this Act, is a court of record. (3) The Tribunal in Court Session is to be the South Australian Employment Court. (4) The Tribunal will also have a part that is the Tribunal acting as an industrial relations commission. 6—Jurisdiction of Tribunal (1) Subject to this or any other Act, the Tribunal will have the jurisdiction (including the jurisdiction to try a charge for an offence) conferred on it by or under this or any other Act. (2) Matters within the jurisdiction of the Tribunal will be assigned to the South Australian Employment Court as follows: (a) an Act conferring jurisdiction on the Tribunal may specifically assign matters to the South Australian Employment Court; (b) the rules may (unless to do so is inconsistent with a provision of a relevant Act) assign matters to the South Australian Employment Court; (c) the jurisdiction to try a charge for an offence is assigned to the South Australian Employment Court. (2a) If a matter is assigned to the South Australian Employment Court, the Court may direct, or an Act or the rules may provide, that the matter be the subject of a compulsory conference (within the meaning of section 43) in the part of the Tribunal that is acting as an industrial relations commission. (3) Matters within the jurisdiction of the Tribunal (and not assigned to the South Australian Employment Court) and dealt with by the Tribunal acting as an industrial relations commission do not need to be specifically assigned to such a commission. 6A—Conferral of jurisdiction—criminal matters (1) Subject to this section, the criminal jurisdiction of the South Australian Employment Court does not include jurisdiction in respect of major indictable offences. (2) In addition to any jurisdiction conferred by or under another Act, the regulations may confer on the South Australian Employment Court jurisdiction in respect of a summary or minor indictable offence against a specified Act or statutory provision. (3) If jurisdiction is conferred on the South Australian Employment Court under this or any other Act in respect of a summary or minor indictable offence, any proceedings for the offence must be commenced in the Court. (4) The South Australian Employment Court will deal with a charge of a summary or minor indictable offence in the same way as the Magistrates Court deals with such a charge (and in accordance with the procedures that would apply if the Magistrates Court were dealing with such a charge) and the Summary Procedure Act 1921 (including the provisions of that Act allowing an award of costs for or against a party to criminal proceedings) applies to the South Australian Employment Court subject to any exclusions or modifications prescribed by the regulations as if references to the Magistrates Court extended to the South Australian Employment Court. (5) For the avoidance of doubt, if a person charged with a minor indictable offence elects, in accordance with the Summary Procedure Act 1921, for a trial in a superior court, the South Australian Employment Court must commit the defendant for trial by jury in the District Court. (6) Where proceedings for a minor indictable offence are dealt with by a magistrate of the South Australian Employment Court— (a) the magistrate cannot impose a fine that exceeds the maximum fixed by the relevant Act or $1 500 000 (whichever is the lesser); and (b) the magistrate cannot impose a sentence of imprisonment that exceeds the maximum fixed by the relevant Act or 5 years (whichever is the lesser). (7) If a magistrate of the South Australian Employment Court is of the opinion in any particular case that a sentence should be imposed that exceeds the limit prescribed by subsection (6), the magistrate may remand the defendant to appear for sentence before a judge of the South Australian Employment Court. (8) In the exercise of the criminal jurisdiction to which this section applies, summary proceedings will be heard by a Deputy President of the South Australian Employment Court who is also a magistrate unless the President determines that the proceedings should be heard by a judge of the Court. 6AB—Diversity proceedings (1) Despite the provisions of this or any other Act, if— (a) the determination of a matter that is within the jurisdiction of the Tribunal involves the exercise of federal diversity jurisdiction; or (b) the determination of a matter would be within the jurisdiction of the Tribunal but for the fact that the exercise of the jurisdiction would involve the exercise of federal diversity jurisdiction, then the jurisdiction must be exercised by the Tribunal sitting as the South Australian Employment Court. (2) If, in proceedings before the Tribunal (other than the Tribunal sitting as the South Australian Employment Court), whether commenced before or after the commencement of this section, the Tribunal considers that the determination of the matter involves, or may involve, the exercise of federal diversity jurisdiction, the Tribunal must refer the proceedings to the South Australian Employment Court for determination. (3) A proceeding— (a) that is before the South Australian Employment Court in the exercise of jurisdiction under subsection (1); or (b) referred to the South Australian Employment Court under subsection (2), is a diversity proceeding. (4) If proceedings are referred to the South Australian Employment Court under subsection (2), the proceedings may be continued and completed, subject to the direction of the Court, as if steps taken in the proceedings prior to the referral had been taken in the Court. (5) In respect of diversity proceedings under this section and despite anything to the contrary in a relevant Act— (a) the South Australian Employment Court may not be constituted of supplementary panel members; and (b) in the case of proceedings referred to the Court under subsection (2) that prior to the referral involved 1 or more supplementary panel members, the proceedings may be continued and completed in the absence of the panel members. (6) The South Australian Employment Court may, if the Court is satisfied that the matter does not involve the exercise of federal diversity jurisdiction— (a) remit the proceedings to the Tribunal as originally constituted; and (b) make such orders that the Court considers appropriate to facilitate the determination of the proceedings. (7) The South Australian Employment Court has, and may exercise, all of the jurisdiction, powers and functions in relation to diversity proceedings that the Tribunal (other than in Court Session) would have had if it could exercise federal diversity jurisdiction, including jurisdiction, powers and functions conferred or imposed on the Tribunal by or under this Act or a relevant Act. (8) The practices and procedures under this Act (including the rules) or a relevant Act that apply to the Tribunal (other than in Court Session) will apply to the South Australian Employment Court in respect of diversity proceedings unless, and to such extent as, the Court determines otherwise. (9) The amount specified in a purported monetary order made by the Tribunal may be recovered in the appropriate court (within the meaning of section 86) by the person in favour of whom the order was made as if it were a debt. (10) A person who contravenes or fails to comply with the terms of a purported order of the Tribunal (other than a purported monetary order) is guilty of an offence. Maximum penalty: $50 000 or imprisonment for 2 years. (11) If a person seeks a variation or revocation of a purported order or purported monetary order, the person may apply to the South Australian Employment Court, and such a matter will be a diversity proceeding for the purposes of this section. (12) No action undertaken, or purportedly undertaken, by a person pursuant to, or for the purposes of enforcing, a purported order or a purported monetary order, in good faith, gives rise to any liability against the person or the Crown. (13) In this section, a reference to a purported order or a purported monetary order is a reference to an order purportedly made by the Tribunal other than in Court Session (whether before or after the commencement of this section) that is invalid because determination of the matter that gave rise to the order involved the exercise of federal diversity jurisdiction and that, on the commencement of this section, is to be made by the South Australian Employment Court. (14) The provisions of this section prevail to the extent of any inconsistency between those provisions and any other provisions of this Act or any other Act. (15) In this section— federal diversity jurisdiction means jurisdiction of the kind referred to in section 75(iii) or (iv) of the Constitution of the Commonwealth. 6B—Conferral of jurisdiction—related matters (1) Without limiting any other provision, if a provision of an Act specifically enables an application to be made to the Tribunal, or a claim to be brought before the Tribunal, the Act will be taken to confer jurisdiction on the Tribunal to deal with the matter concerned. (2) Without limiting any other provision, Divisions 6 and 7 provide for additional jurisdiction, powers and other matters relating to the conferral of jurisdiction on the Tribunal or the Tribunal in Court session. 7—Tribunal to operate throughout State (1) The Tribunal is to facilitate access to its services throughout the State and may sit at any place (either within or outside the State). (2) Registries of the Tribunal will be at the places determined by the President after consultation with the Minister. 7A—Seals (1) The Tribunal will have such seals as are necessary for the transaction of its business. (2) The Tribunal must have a seal for the South Australian Employment Court. (3) A document apparently sealed with a seal of the Tribunal (including with respect to the South Australian Employment Court) will, in the absence of evidence to the contrary, be taken to have been duly issued under the authority of the Tribunal. Division 2—Main objectives of Tribunal 8—Main objectives of Tribunal The main objectives of the Tribunal in dealing with matters within its jurisdiction are— (a) in the exercise of its jurisdiction, to promote the best principles of decision‑making, including— (i) independence in decision‑making; and (ii) natural justice and procedural fairness; and (iii) high‑quality, consistent decision‑making; and (iv) transparency and accountability in the exercise of statutory functions, powers and duties; and (b) to be accessible by being easy to find and easy to access, and to be responsive to parties, especially people with special needs; and (c) to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome, including by resolving disputes through high‑quality processes and the use of mediation and alternative dispute resolution procedures wherever appropriate; and (d) to keep costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and (e) to use straightforward language and procedures (including, insofar as is reasonably practicable and appropriate, by using simple and standardised forms); and (f) to act with as little formality and technicality as possible, including by informing itself in such manner as the Tribunal thinks fit; and (g) to be flexible in the way in which the Tribunal conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction. Division 3—Members of Tribunal Subdivision 1—The members 9—The members The members of the Tribunal are— (a) the President; and (b) the Deputy Presidents; and (c) the magistrates who are designated as members of the Tribunal under this Act; and (d) the Commissioners; and (e) the supplementary panel members. Subdivision 2—The President 10—Appointment of President (1) The President of the Tribunal will be a judge of the District Court appointed by the Governor, by proclamation, to be the President of the Tribunal. (2) The President of the Tribunal will, by virtue of holding that office, have the same rank, title, status and precedence as a judge of the Supreme Court. (3) Furthermore, the appointment of a judge of the District Court as President of the Tribunal does not affect— (a) the judge's tenure of office or status as a judge; or (b) the payment of the judge's salary or allowances as a judge (subject to the operation of subsection (7)); or (c) the ability of the person to do anything in the person's capacity as a judge (including as to the exercise of the jurisdiction of the District Court); or (d) any other right or privilege that the judge has as a judge. (4) Service in the office of President of the Tribunal is taken, for all purposes, to constitute service as a judge of the District Court. (5) Subject to subsections (3) and (4), an appointment may be subject to conditions determined by the Governor. (6) Without limiting subsection (5), the Remuneration Tribunal may determine that the President's salary or allowances as a judge will have an additional component on account of holding office under this Act (and the jurisdiction to make such a determination is conferred on the Remuneration Tribunal by this Act). (7) Any salary or allowances payable as an additional component of remuneration under subsection (6) cannot be reduced during the person's term of office as President. (8) A person ceases to be the President of the Tribunal if— (a) the person ceases to be a judge of the District Court; or (b) the person, with the approval of the Governor, resigns as President by written notice to the Attorney‑General; or (c) the person dies. (9) Nothing under subsection (8)(b) affects the person's tenure or status as a judge. (10) Before the Governor makes a proclamation under this section, the Attorney‑General must consult with the Chief Justice and the Chief Judge. 11—President's functions generally (1) The President of the Tribunal has the functions conferred on the President under this Act or any other Act. (2) The functions of the President include— (a) participating as a member of the Tribunal; and (b) having primary responsibility for the administration of the Tribunal; and (c) managing the business of the Tribunal, including by ensuring that the Tribunal operates efficiently and effectively and continually improves the way in which it carries out its functions; and (d) providing leadership and guidance to the Tribunal and engendering cohesiveness and collaboration amongst the members and staff of the Tribunal; and (e) giving directions about the practices and procedures to be followed by the Tribunal; and (f) developing and implementing performance standards and setting benchmarks for the Tribunal; and (g) being responsible for promoting the training, education and professional development of members of the Tribunal; and (h) overseeing the proper use of the resources of the Tribunal; and (i) providing advice about— (i) the membership of the Tribunal; and (ii) the operations and activities of the Tribunal. (3) The President may do all things necessary or convenient to be done in the performance of the President's functions. (4) In the performance of the President's functions, the President is not subject to direction or control by the Minister. 12—Acting President (1) If there is a vacancy in the office of President or the President is absent or for any other reason is unable to perform the functions of office, the Governor may, by proclamation, appoint a person to act as President of the Tribunal. (2) The Governor may only appoint— (a) a Deputy President; or (b) a judge of the District Court, to act as President. (3) A person appointed to act as President— (a) has all the functions of the President; and (b) is taken to be the President for all purposes related to this Act or a relevant Act. (4) A person appointed to act as President is, for the period of his or her appointment, entitled to be paid additional salary and allowances to ensure that his or her salary and allowances equal the salary and allowances payable to a President of the Tribunal. (5) The Governor may, by further proclamation— (a) extend or renew an appointment under this section; or (b) revoke an appointment under this section. (6) Until an appointment is made under subsection (1) (or unless such an appointment is made) the most senior Deputy President who is also a judge of the District Court will be taken to hold an appointment to act as the President of the Tribunal. Subdivision 3—The Deputy Presidents 12A—Number of Deputy Presidents There will be at least 2 Deputy Presidents of the Tribunal. 13—Appointment of Deputy Presidents (1) A Deputy President will be— (a) a judge of the District Court appointed by the Governor, by proclamation, to be a Deputy President of the Tribunal; or (b) a magistrate appointed by the Governor, by proclamation, to be a Deputy President of the Tribunal. (2) The appointment of a judge of the District Court as a Deputy President of the Tribunal under subsection (1)(a) does not affect— (a) the judge's tenure of office or status as a judge; or (b) the payment of the judge's salary or allowances as a judge (subject to the operation of subsection (5)); or (c) the ability of the person to do anything in the person's capacity as a judge (including as to the exercise of the jurisdiction of the District Court); or (d) any other right or privilege that the judge has as a judge of the District Court. (3) Service in the office of Deputy President of the Tribunal by a judge of the District Court is taken, for all purposes, to constitute service as a judge of that Court. (4) Subject to subsections (2) and (3), an appointment under subsection (1)(a) may be subject to conditions determined by the Governor. (5) Without limiting subsection (4), in the case of an appointment under subsection (1)(a), the Remuneration Tribunal may determine that a Deputy President's salary or allowance as a judge will have an additional component on account of holding office under this Act (and the jurisdiction to make such a determination is conferred on the Remuneration Tribunal by this Act). (6) Any salary or allowances payable as an additional component of remuneration under subsection (5) cannot be reduced during the person's term of office as a Deputy President of the Tribunal. (7) The appointment of a magistrate as a Deputy President of the Tribunal under subsection (1)(b) does not affect— (a) the magistrate's tenure of office or status as a magistrate; or (b) the payment of the magistrate's salary or allowances as a magistrate (subject to the operation of subsection (10)); or (c) the ability of the person to do anything in the person's capacity as a magistrate; or (d) any other right or privilege that the magistrate has by virtue of the office of magistrate. (8) Service in the office of Deputy President of the Tribunal by a magistrate is taken, for all purposes, to constitute service as a magistrate. (9) Subject to subsections (7) and (8), an appointment under subsection (1)(b) may be subject to conditions determined by the Governor. (10) Without limiting subsection (9), in the case of an appointment under subsection (1)(b), the Remuneration Tribunal may determine that a Deputy President's salary or allowance as a magistrate will have an additional component on account of holding office under this Act (and the jurisdiction to make such a determination is conferred on the Remuneration Tribunal by this Act). (11) A person ceases to be a Deputy President of the Tribunal if— (a) in the case of an appointment under subsection (1)(a)—the person ceases to be a judge of the District Court; or (b) in the case of an appointment under subsection (1)(b)—the person ceases to be a magistrate; or (c) the person resigns as Deputy President by written notice to the Attorney‑General; or (d) the person dies. (12) Nothing in subsection (11)(c) affects a person's tenure or status as a judge (in the case of an appointment under subsection (1)(a)) or as a magistrate (in the case of an appointment under subsection (1)(b)). (13) Before the Governor makes a proclamation under this section, the Attorney‑General must consult with— (a) the Chief Justice; and (ab) the President; and (b) in the case of an appointment under subsection (1)(a)—the Chief Judge; and (c) in the case of an appointment under subsection (1)(b)—the Chief Magistrate. 14—Deputy President's functions generally (1) A Deputy President of the Tribunal has the functions conferred on the Deputy President under this Act or any other Act. (2) The functions of a Deputy President include— (a) participating as a member of the Tribunal; and (b) assisting the President in the management of the business of the Tribunal; and (c) assisting the President in managing the members of the Tribunal, including in connection with the training, education and professional development of members of the Tribunal; and (d) other functions assigned by the President. (3) A Deputy President may do all things necessary or convenient to be done in the performance of the Deputy President's functions. (4) A Deputy President is subject to the direction of the President in performing the Deputy President's functions, other than adjudicating in the Tribunal. Subdivision 4—Magistrates 15—Magistrates (1) Any magistrate holding office under the Magistrates Act 1983 who is designated by the Governor, by proclamation, as a member of the Tribunal on a recommendation of the Attorney‑General will (while he or she continues to hold office as a magistrate) be a member of the Tribunal. (2) The Attorney‑General must consult with the President of the Tribunal and the Chief Magistrate before making a recommendation under subsection (1). (3) A magistrate appointed under this section will act as a full‑time, part‑time or sessional member of the Tribunal under an arrangement established by the President and the Chief Magistrate (being an arrangement that may be varied from time to time). (4) The designation of a magistrate under this section does not affect— (a) the magistrate's tenure of office or status as a magistrate; or (b) the payment of the magistrate's salary or allowances as a magistrate; or (c) the ability of the person from doing anything in the person's capacity as a magistrate; or (d) any other right or privilege that the magistrate has as a magistrate. Subdivision 5—Commissioners 16—Appointment of Commissioners (1) The Governor may, on the recommendation of the Minister, appoint a person as a Commissioner. (2) The Minister may from time to time appoint a panel of persons who will, at the request of the Minister— (a) after consultation with the President, recommend the selection criteria for Commissioners; (b) assess a candidate or candidates for appointment as a Commissioner (and, as appropriate, to provide advice to the Minister for the purposes of subsection (1)). (3) A person is eligible for appointment as a Commissioner only if the person— (a) is a legal practitioner of at least 5 years standing (taking into account, for that purpose, periods of legal practice and judicial service within and outside the State); or (b) has, in the Minister's opinion, extensive knowledge, expertise or experience relating to a class of matter for which functions may be exercised by the Tribunal. (4) In recommending persons for appointment as Commissioners, the Minister must have regard to— (a) any criteria applying under subsection (2)(a); and (b) any advice provided under subsection (2)(b); and (c) the following: (i) the need for balanced gender representation in the membership of the Tribunal; (ii) the need for the membership of the Tribunal to reflect social and cultural diversity; (iii) the range of knowledge, expertise and experience required within the membership of the Tribunal. (5) The Minister must consult with the President of the Tribunal before making a recommendation under subsection (1). (6) A Commissioner will be appointed for a term of office, not exceeding 5 years, specified in the instrument of appointment. (7) A person appointed as a Commissioner is eligible for reappointment at the expiration of a term of office (and without the need for seeking advice from a panel established under subsection (2)). (8) A Commissioner is appointed on conditions specified in the instrument of appointment. (9) A Commissioner may be appointed on a full‑time, part‑time or sessional basis (and this may be altered from time to time with the agreement of the Minister). (10) A Commissioner— (a) must advise the President of the Tribunal of the nature of any paid employment or professional work undertaken outside his or her duties as a member of the Tribunal; and (b) must not engage in any such employment or work if the President informs the member that, in the President's opinion, to do so would or may conflict with the proper performance of the member's duties of office. (11) The Minister must consult with the President about— (a) the conditions of an appointment under subsection (8); and (b) the basis of an appointment under subsection (9). 17—Commissioner ceasing to hold office and suspension (1) The Governor may, on the recommendation of the Minister, remove a Commissioner from office for— (a) misconduct; or (b) neglect of duty; or (c) incompetence; or (d) incapacity to carry out official duties satisfactorily. (2) A person ceases to be a Commissioner if the person— (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice to the Minister; or (d) ceases to satisfy any qualification by virtue of which the person was eligible for appointment to the Tribunal; or (e) is removed from office under subsection (1). (3) The Minister must consult with the President before making a recommendation under subsection (1). (4) The President may, on his or her own initiative or at the request of the Minister, suspend a Commissioner from office if it appears that there may be grounds for the removal of the Commissioner from the Commissioner's office. (5) If a Commissioner who is appointed on a full‑time or part‑time basis is suspended under subsection (4), the Commissioner remains entitled to the Commissioner's usual remuneration and allowances during the period of suspension. 18—Supplementary Commissioners (1) The Minister may, at the request or with the agreement of the President of the Tribunal, temporarily appoint a person to act as a supplementary Commissioner in relation to a particular matter or matters or for a specified period. (2) The Minister may only appoint a person under this section if he or she is eligible for appointment as a Commissioner. (3) An appointment under this section must be made in writing. (4) The person may act as a member of the Tribunal in relation to a matter, or for the period, for which the person is appointed, and when acting under the appointment the person is to be regarded as a Commissioner for the purposes of this Act and any relevant Act (and the other provisions of this Subdivision apply with any necessary modifications in relation to a person appointed under this section). (5) A person appointed under this section is, for the period of appointment, entitled to be paid any salary or allowances determined by the Minister after consultation with the President of the Tribunal. (6) A person appointed under this section for a particular period may be appointed to act for a further period by the Minister after consultation with the President of the Tribunal. (7) The Governor may at any time, on the recommendation of the Minister, cancel the appointment of a person under this section. (8) Before the Governor acts under subsection (7), the Minister must consult with the President of the Tribunal (unless the Minister is acting at the request of the President). Division 3A—Supplementary panel members 18A—Supplementary panel members (1) There will be such panels of supplementary panel members as may be necessary for the purposes of any relevant Act. (2) A supplementary panel member will be appointed by the Governor on the recommendation of the Minister responsible for the administration of this Act in consultation with the Minister responsible for the administration of the relevant Act (unless otherwise provided by the relevant Act). (3) A supplementary panel member will be appointed for a term of office, not exceeding 5 years, specified in the instrument of appointment and is eligible for reappointment at the expiration of a term of office. (4) A supplementary panel member is appointed on conditions specified in the instrument of appointment. (5) A supplementary panel member will sit on a sessional basis. (6) Subject to the conditions of appointment, a supplementary panel member may perform work outside the Tribunal. (7) The Governor may, on the recommendation of the Minister responsible for the administration of this Act after consultation with the Minister responsible for the administration of the relevant Act, remove a supplementary panel member from office for— (a) misconduct; or (b) neglect of duty; or (c) incompetence; or (d) incapacity to carry out official duties satisfactorily. (8) A person ceases to be a supplementary panel member if the person— (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice to the Minister; or (d) ceases to satisfy any qualification by virtue of which the person was eligible for appointment to the panel; or (e) is removed from office under subsection (7). (9) The Governor may make appointments from time to time for the purpose of maintaining or increasing the membership of panels established under this section. Division 4—Constitution of Tribunal and its decision‑making processes 19—Constitution of Tribunal (1) Subject to this section, the President may determine, in relation to a particular matter or matters, or particular classes of matters, which member or members of the Tribunal will constitute the Tribunal. (1a) The Tribunal sitting as the South Australian Employment Court may only be constituted by members of the Tribunal who are also judges or magistrates (sitting alone or in any combination as the President thinks fit). (2) The Tribunal is not to be constituted by more than 3 members. (3) A Full Bench of the Tribunal consists of— (a) when sitting as the South Australian Employment Court—3 Presidential members; or (b) when acting as an industrial relations commission—3 members of which at least 1 must be a Presidential member. (4) The President may, as he or she thinks fit— (a) alter who is to constitute the Tribunal for the purpose of dealing with a matter, or anything relating to a matter, and the Tribunal as constituted after the alteration can have regard to any record of the proceedings of the Tribunal in relation to the matter before the alteration or any evidence taken in the proceedings before the alteration; (b) provide that different aspects of the same matter may be dealt with by different members of the Tribunal, and the members of the Tribunal may then come together and have regard to any evidence taken by the respective members of the Tribunal for the purposes of the proceedings of the Tribunal. (4a) If a member of the Tribunal who is not a Presidential member is to constitute the Tribunal, or is to be a member of a Full Bench of the Tribunal, for the purpose of dealing with any matter, the President must be satisfied that the member has appropriate knowledge, expertise, or experience relating to that class of matter. (5) In addition, the Tribunal may be constituted of— (a) a registrar for the purpose of adjourning proceedings; or (b) a registrar or other member of the staff of the Tribunal for any other purpose specified by this Act or a relevant Act, prescribed by the rules of the Tribunal, or determined by the President. (5a) In addition, a member of the Tribunal (not being a judge or magistrate), or a registrar or other member of the staff of the Tribunal, may assist with the business of the South Australian Employment Court to the extent that it may be appropriate to do so. (6) The Tribunal may, at any one time, be separately constituted in accordance with this section for the hearing and determination of any number of separate matters. (7) The Tribunal may, if it considers it appropriate to do so, organise its business and regulate proceedings before the Tribunal in such a way that 2 or more proceedings in respect of the same matter are heard together. (8) Where a registrar or other member of the staff of the Tribunal exercises the jurisdiction of the Tribunal, the registrar or other member of the staff may, and must if the Tribunal or the President of the Tribunal so directs, refer the matter to the Tribunal for determination by the Tribunal. (9) If a provision of this Act and the provisions of a relevant Act deal with the manner in which the Tribunal is to be constituted for the purposes of proceedings or any other business under a relevant Act, this section applies subject to those provisions of the relevant Act. 20—Who presides at proceedings of Tribunal (1) If, for dealing with a particular matter, the Tribunal is constituted by 2 or more members, the most senior of them is to preside at the proceedings of the Tribunal. (2) The seniority of members of the Tribunal depends on which of the offices held takes precedence and, if that does not determine a member's seniority, the matter is to be resolved by the President of the Tribunal. (3) The order of precedence of offices is as follows: (a) President; (b) Deputy President; (c) magistrate; (d) Commissioner; (e) supplementary panel member. 21—Decision if 2 or more members constitute Tribunal If the Tribunal is constituted by 2 or more members, a question they are required to decide is resolved, unless section 22 applies, according to the opinion of the majority of them but, if their opinions on the question are equally divided, the question is to be resolved according to the opinion of the presiding member. 22—Determination of questions of law (1) The member of the Tribunal constituting the Tribunal or, if the Tribunal is constituted by 2 or more members, the presiding member, may refer a question of law to a Full Bench of the South Australian Employment Court. (2) If a question of law is referred under this section— (a) the question is decided by the Tribunal according to the opinion of the Full Bench of the South Australian Employment Court; or (b) the Full Bench may refer the question to the Court of Appeal for determination. (3) If a Full Bench of the Court decides a question of law under subsection (2), the Full Bench may, in addition— (a) decide any other questions remaining between the parties; and (b) make such orders that are necessary to dispose of the matter. Division 5—Related matters 24—Validity of acts of Tribunal An act or proceeding of the Tribunal is not invalid by reason only of a vacancy in the membership of, or a defect in the appointment of a person to, the Tribunal or a panel from which members of the Tribunal are drawn, or a defect in the appointment of any other person to act on behalf of the Tribunal. 25—Disclosure of interest by members of Tribunal If the Tribunal is constituted of, or includes, a member who has a pecuniary or other interest that could conflict with the proper performance of the member's functions in proceedings before the Tribunal, the member— (a) must disclose the interest to the parties to the proceedings and to the President of the Tribunal; and (b) must not take part in the proceedings or exercise powers affecting the proceedings— (i) if the President directs the member to withdraw from the proceedings; or (ii) if a party to the proceedings does not consent to the member hearing and determining, or participating in the hearing and determination of, the proceedings. 26—Delegation (1) The President of the Tribunal may delegate a function or power of the President under this or any other Act— (a) to another member of the Tribunal; or (b) to a member of the staff of the Tribunal; or (c) to the person (being either a member of the Tribunal or a member of the staff of the Tribunal) for the time being performing particular duties or holding or acting in a particular position. (2) A delegation under subsection (1)— (a) must be made by instrument in writing; and (b) may be conditional; and (c) does not derogate from the ability of the President to act in any matter; and (d) is revocable at will by the President. Division 6—Additional provisions relating to jurisdiction 26A—Declaratory judgments Without limiting any specific jurisdiction to make declaratory judgments conferred by another Act, the South Australian Employment Court may, on matters within its jurisdiction, make binding declarations of right whether or not any consequential relief is or could be claimed. 26B—Other provisions relating to civil jurisdiction of Court Without limiting any other provision of this Act, the South Australian Employment Court may, in exercising any jurisdiction that is in the nature of a civil jurisdiction, exercise any power under Part 6 of the District Court Act 1991, subject to any exclusions or modifications prescribed by the regulations as if references to the District Court extended to the South Australian Employment Court. 26C—Binding nature of decisions Without limiting any other provision of this Act, any decision or determination of the South Australian Employment Court is binding and authoritative in nature and binds the parties to the relevant matter by its own force. Division 7—Additional provisions relating to jurisdiction under Return to Work Act 2014 26D—Civil jurisdiction under Return to Work Act 2014 (1) The South Australian Employment Court has exclusive jurisdiction to hear and determine an action for damages to which Part 5 of the Return to Work Act 2014 applies. (2) Proceedings for any tortfeasor liable in respect of damages to which Part 5 of the Return to Work Act 2014 applies to recover contribution from any other tortfeasor liable in respect of those damages may be brought before the Tribunal and dealt with by the South Australian Employment Court. (3) If a cause of action giving rise to proceedings brought under subsection (1) or (2) also gives rise to a claim in respect of some other matter, the claim may be included in those proceedings even though it does not relate to proceedings for damages within the scope of section 71(1) of the Return to Work Act 2014. (4) Any matter that is ancillary or related to a matter that is the subject of proceedings brought under a preceding subsection may also be included in those proceedings. (5) In connection with the operation of this section, a reference to a court in a prescribed provision will be taken to be a reference to the South Australian Employment Court. (6) In this section— prescribed provision means any of the following provisions of the Return to Work Act 2014: (a) section 22; (b) Part 5; (c) Part 8. 26E—Rights of action and recovery against third parties (1) A reference in section 66 of the Return to Work Act 2014 to the District Court of South Australia will be taken to include a reference to the Tribunal. (2) The jurisdiction of the Tribunal by virtue of the operation of subsection (1) is assigned to the South Australian Employment Court. (3) An action to recover an excess under section 66(9) of the Return to Work Act 2014 may be brought in the South Australian Employment Court (or in any other court of competent jurisdiction). 26F—Review jurisdiction under Return to Work Act 2014 A reference in section 103 of the Return to Work Act 2014 to Part 3 of this Act will be taken to be a reference to Division 1 of that Part. 26G—Injuries that develop gradually (1) A reference in section 188 of the Return to Work Act 2014 to the Industrial Relations Court of South Australia will be taken to be a reference to the Tribunal. (2) The jurisdiction of the Tribunal by virtue of the operation of subsection (1) is assigned to the South Australian Employment Court. 26H—Criminal jurisdiction The South Australian Employment Court is conferred with jurisdiction to try a charge for an offence against the Return to Work Act 2014. 26I—Appeals An appeal from a decision of the Tribunal under the Return to Work Act 2014 (other than in the exercise of its criminal jurisdiction) will be limited to a question of law. Division 8—Additional provisions relating to jurisdiction under Workers Compensation Act 1971 26IA—Additional provisions relating to jurisdiction under Workers Compensation Act 1971 (1) The purpose of this section is, in consequence of— (a) the continued application of the Workers Compensation Act 1971¹ under Schedule 9 clause 59(1) of the Return to Work Act 2014; and (b) the dissolution of the Industrial Relations Court under section 69 of the Statutes Amendment (South Australian Employment Tribunal) Act 2016, to confer on the Tribunal the same jurisdiction under the Workers Compensation Act 1971 that was previously conferred on the Industrial Relations Court. Note— ¹ The Workers Compensation Act 1971 was repealed by the Workers Rehabilitation and Compensation Act 1986. (2) The Workers Compensation Act 1971 is to be read— (a) as if a reference in that Act to the "Court" were a reference to the Tribunal; and (b) as if reference in that Act to a "Judge" were a reference to a Presidential member of the Tribunal who is a District Court judge; and (c) as if a reference in that Act to the "Registrar" were a reference to a registrar of the Tribunal; and (d) as if a reference in that Act to an "Industrial magistrate" were a reference to a Presidential member of the Tribunal who is a magistrate; and (e) as if a reference in that Act to the "Rules" were a reference to the Rules of the Tribunal; and (f) as if a reference in that Act to the "Regulations" were a reference to regulations under this Act; and (g) as if a reference in that Act to the "Full Industrial Relations Court" were a reference to the Full Bench of the Tribunal in Court Session. (3) The jurisdiction of the Tribunal by virtue of the operation of subsection (2) is assigned to the South Australian Employment Court. Part 3—Exercise of jurisdiction Division 1—Review jurisdiction 26J—Application of Division (1) This Division applies if— (a) the Tribunal is dealing with a matter that involves the review of a decision made under an Act (including in a case that constitutes an appeal under a relevant Act); or (b) a relevant Act provides for the Tribunal to deal with a matter under this Division; or (c) the rules apply this Division to a matter within the jurisdiction of the Tribunal. (2) Subsection (1)(a) does not apply in any circumstances prescribed by the regulations. 27—General nature of proceedings (1) Subject to a relevant Act, a matter under this Division will be dealt with by the Tribunal as a review of the decision that constitutes the matter. (2) Where the review of a decision is to be undertaken, the person or body that made or is taken to have made the decision is the decision‑maker for the purposes of these provisions. (3) Subject to subsections (4), (5) and (6), the Tribunal will examine the decision of the decision‑maker by way of rehearing. (4) On a rehearing, the Tribunal must reach the correct or preferable decision but in doing so must have regard to the decision of the original decision‑maker. (5) A procedure on a rehearing will include— (a) an examination of the evidence or material before the decision‑maker (unless any such evidence or material is to be excluded under another provision of this Act or under any other law); and (b) a consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for the purposes of rehearing the matter. (6) In dealing with a matter under this Division, the Tribunal is to deal with the matter in accordance with this Act and any relevant Act. (7) Furthermore, a relevant Act may modify the operation of this Act in relation to a matter that comes within the exercise of the Tribunal's jurisdiction under this Division. 28—Decision‑maker must assist Tribunal (1) In proceedings for a review of a decision, the decision‑maker must use his or her best endeavours to help the Tribunal so that it can make its decision on the review. (2) Without limiting subsection (1), the decision‑maker must provide the following to the Tribunal within a reasonable period and in any event within the time prescribed by the regulations: (a) a written statement of the reasons for the decision; (b) any document or thing in the decision‑maker's possession or control that may be relevant to the Tribunal's review of the decision. (3) The decision‑maker must, in providing any document or thing under subsection (2), take reasonable steps to identify the documents or things that were taken into account in making the relevant decision. (4) If the Tribunal considers that there are additional documents or things in the decision‑maker's possession or control that may be relevant to the Tribunal's review of the reviewable decision, the Tribunal may, by written notice, require the decision‑maker to provide the documents or things. (5) If the Tribunal considers the statement of reasons given under subsection (2)(a) is not adequate, the Tribunal may, by written notice, require the decision‑maker to give the Tribunal an additional statement containing stated further particulars. (6) The decision‑maker must comply with a notice given under subsection (4) or (5) within the period stated in the notice. (7) A requirement under this section that the decision‑maker give the Tribunal information or a document or thing applies despite any provision in another Act prohibiting or restricting the disclosure of the information or the information contained in the document or thing. (8) The Tribunal may examine any document or thing provided under this section and draw any conclusions of fact it considers proper. 29—Effect of review proceedings on decision being reviewed (1) The commencement of proceedings for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision unless— (a) the relevant Act states otherwise; or (b) an order is made under subsection (2). (2) On or after the commencement of proceedings for a review of a decision, the Tribunal or the decision‑maker may, on application or on its own initiative, make an order staying or varying the operation or the implementation of the whole or a part of the decision pending the determination of the matter, or until such time (whether before or after the determination of the matter) as the Tribunal or the decision‑maker may specify, if the Tribunal, or the decision‑maker, is satisfied that it is just and reasonable in the circumstances to make the order. (3) An order by the Tribunal or the decision‑maker under this section— (a) is subject to such conditions as are specified in the order; and (b) may be varied or revoked— (i) in any case—by further order of the Tribunal; or (ii) if the order was made by the decision‑maker—by further order by the decision‑maker or the Tribunal. 30—Decision on review (1) The Tribunal may, on a review of a decision— (a) affirm the decision that is being reviewed; or (b) vary the decision that is being reviewed; or (c) set aside the decision being reviewed and— (i) substitute its own decision; or (ii) send the matter back to the decision‑maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate, and, in any case, may make any order the Tribunal considers appropriate (including any interim order pending the reconsideration and determination of the matter by the decision‑maker, or any ancillary or consequential order, that the Tribunal considers appropriate). (2) The fact that a decision is made on reconsideration under subsection (1)(c)(ii) does not prevent the decision from being open to review by the Tribunal. (3) The decision‑maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision‑maker's decision— (a) is to be regarded as, and given effect as, a decision of the decision‑maker; and (b) unless the relevant Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, from the time when the decision reviewed would have, or would have had, effect. (4) Without limiting subsection (3)(a), the decision‑maker has power to do anything necessary to implement the Tribunal's decision. (5) Despite subsection (3)(a), the decision as affirmed, varied or substituted is not again open to review before the Tribunal as a decision of the decision‑maker (but may be subject to appeal under this Act). 31—Tribunal may invite decision‑maker to reconsider decision (1) At any stage of proceedings for the review of a decision, the Tribunal may invite the decision‑maker to reconsider the decision. (2) On being invited by the Tribunal to reconsider the decision, the decision‑maker may— (a) affirm the decision; or (b) vary the decision; or (c) set aside the decision and substitute a new decision. (3) If the decision‑maker varies the decision or sets it aside and substitutes a new decision, unless the proceedings for a review are withdrawn, the proceedings will then be taken to be for— (a) the review of the decision as varied; or (b) the review of the substituted decision. (4) The Tribunal may specify a period within which the decision‑maker should act under this section (and if the decision‑maker does not take action within that period then the Tribunal may resume its proceedings under this Part in such manner as it thinks fit). Division 2—Application of Division 31A—Application of Division (1) This Division applies in cases where Division 1 does not apply. (2) Subject to a relevant Act, a matter under this Division will, depending on the nature of the matter, be dealt with by the Tribunal— (a) acting as the original decision-maker in the matter (and according to those principles which, according to law, are to be applied to bodies that make such decisions according to statute); or (b) resolving a dispute between the parties to the relevant proceedings (according to law and including, if appropriate, by giving a judgment, making a declaration or providing any other remedy); or (c) adopting any other course of action and providing any other relief, decision or determination that the Tribunal considers appropriate to deal with the matter. (3) In dealing with a matter under this Division, the Tribunal is to deal with the matter in accordance with this Act and any relevant Act. (4) Furthermore, a relevant Act may modify the operation of this Act in relation to a matter that comes within the exercise of the Tribunal's jurisdiction under this Division. Part 4—Principles, powers and procedures Division 1—Principles governing hearings 32—Principles governing hearings (1) On the hearing of any proceedings, but subject to the provisions of a relevant Act— (a) the procedure of the Tribunal will, subject to this Act, be conducted with the minimum of formality; and (b) the Tribunal is not bound by the rules of evidence, may adopt, as in its discretion it considers appropriate, any findings, decision or judgment of a court or other tribunal (insofar as may be relevant to the proceedings before the Tribunal), and may otherwise inform itself as it thinks fit; and (c) the Tribunal must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms. (1a) However, the rules of evidence and other formal procedures of a court of record apply to the South Australian Employment Court to the extent that the Court considers it necessary or appropriate and the Tribunal (in the exercise of any jurisdiction) may give directions about any question of evidence. (2) Nothing in this Act affects any rule or principle of law relating to— (a) legal professional privilege; or (b) "without prejudice" privilege; or (c) public interest immunity. (3) This section does not limit the operation of section 64. Division 2—Evidentiary powers 33—Power to require person to give evidence or to produce evidentiary material (1) The Tribunal may, on the application of a party to proceedings or on its own initiative, issue a summons requiring a person to appear before the Tribunal at a specified time and place to give evidence or to produce evidentiary material (or both). (2) A summons to produce evidentiary material may, instead of providing for production of the material before the Tribunal, provide for production of the material to an officer of the Tribunal, or to any person nominated in the summons. (3) The Tribunal may— (a) retain any document, object or substance produced before it for such reasonable period as it thinks fit, and make copies of any document; and (b) require a person to make an oath or affirmation (which may be administered by any member or officer of the Tribunal) to answer truthfully questions put by any member of the Tribunal or any person appearing before the Tribunal; and (c) require any person to answer any questions put by any member of the Tribunal or any person appearing before the Tribunal that are determined by the Tribunal to be relevant to the proceedings before the Tribunal. (4) A person who is called to give evidence or to produce evidentiary material before the Tribunal and— (a) refuses or fails to make an oath or affirmation when required to do so under this section; or (b) refuses or fails without reasonable excuse to produce evidentiary material that the person is required by the Tribunal to produce; or (c) refuses or fails without reasonable excuse to appear before the Tribunal in response to a summons; or (d) refuses or fails without reasonable excuse to give evidence before the Tribunal or otherwise refuses or fails without reasonable excuse to answer any question put in proceedings before the Tribunal or otherwise required under this Act; or (e) gives false or misleading evidence to the Tribunal; or (f) misbehaves before the Tribunal, wilfully insults the Tribunal or 1 or more members or officers of the Tribunal in the exercise of official duties, or wilfully interrupts the proceedings of the Tribunal, is guilty of an offence. Maximum penalty: $25 000 or imprisonment for 1 year. (5) A summons under this section may be issued on behalf of the Tribunal by— (a) any member of the Tribunal; or (b) a registrar; or (c) any other officer authorised under the rules or by the President of the Tribunal to issue such summonses. 34—Entry and inspection (1) A member of the Tribunal may enter any land, building, structure, ship or vessel and carry out any inspection that the Tribunal considers relevant to any proceedings before the Tribunal. (2) A member of the Tribunal may aut